“Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?”

Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. ...

Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act [which established the NRA], a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause.

Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.

This isn't just about the ACA or getting a second crack at the Public Option; it's about settled law and the Commerce Clause. Untimately it's about the New Deal government that we've all been living under and benefiting from — the one we assume is bullet-proof, here forever.

Not so, says Toobin (and Hayes in the clip above). Toobin again:

In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing[.] ... Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda.

[This] decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. ... It is simply not the Supreme Court’s business to be making these kinds of judgments.

Maybe. On the other hand though, if you totally love power, and totally can't be removed by any agency on earth — why not just use it?

After all, it's not like you haven't had practice swinging some pipe; you totally gave us this guy:

Nearly a century of settled law won't repeal itself, you know, and time's totally wasting.

“Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?”

Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. ...

Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act [which established the NRA], a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause.

Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.

This isn't just about the ACA or getting a second crack at the Public Option; it's about settled law and the Commerce Clause. Untimately it's about the New Deal government that we've all been living under and benefiting from — the one we assume is bullet-proof, here forever.

Not so, says Toobin (and Hayes in the clip above). Toobin again:

In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing[.] ... Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda.

[This] decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. ... It is simply not the Supreme Court’s business to be making these kinds of judgments.

Maybe. On the other hand though, if you totally love power, and totally can't be removed by any agency on earth — why not just use it?

After all, it's not like you haven't had practice swinging some pipe; you totally gave us this guy:

Nearly a century of settled law won't repeal itself, you know, and time's totally wasting.

AMERICABLOG KUDOS

Include your pet's photo in our rotating archive by sending it to photos@americablog.com. Make sure you put "pet" in the subject line, and tell us something about your pet (goofy, touching, whatever you like), and we just might write a post about it too!